EXHIBIT 10.5
GOLDMAN SACHS & CO. | 85 BROAD STREET | NEW
YORK, NEW YORK 10004 |
TEL: 212-902-1000
Opening Transaction
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To:
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From:
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Subject:
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Accelerated
Share Repurchase Transaction — VWAP Pricing
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Ref.
No:
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Date:
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This master
confirmation (“Master Confirmation”) dated as of
November 19, 2004, is intended to supplement the terms and
provisions of certain Transactions (each, a
“Transaction”) entered into from time to time between
Goldman, Sachs & Co. (“GS&Co.”) and
SpectraSite, Inc. (“Counterparty”). This Master
Confirmation, taken alone, is neither a commitment by either party
to enter into any Transaction nor evidence of a Transaction. The
terms of any particular Transaction shall be set forth in a
Supplemental Confirmation in the form of Annex A hereto and which
references this Master Confirmation, in which event the terms and
provisions of this Master Confirmation shall be deemed to be
incorporated into and made a part of each such Supplemental
Confirmation. This Master Confirmation and each Supplemental
Confirmation together shall constitute a “Confirmation”
as referred to in the Agreement specified below.
The
definitions and provisions contained in the 2002 ISDA Equity
Derivatives Definitions (the “Equity Definitions”), as
published by the International Swaps and Derivatives Association,
Inc., are incorporated into this Master Confirmation. This Master
Confirmation and each Supplemental Confirmation evidences a
complete binding agreement between the Counterparty and GS&Co.
as to the terms of each Transaction to which this Master
Confirmation and the related Supplemental Confirmation
relates.
GS&Co. and
Counterparty agree to use all reasonable efforts promptly to
negotiate, execute and deliver an agreement in the form of the 1992
ISDA Master Agreement (Multicurrency-Cross Border) (the “ISDA
Form” or the “Agreement”), with such
modifications as GS&Co. and Counterparty will in good faith
agree. Upon the execution by GS&Co. and Counterparty of the
Agreement, this Master Confirmation and each Supplemental
Confirmation will supplement, form a part of, and be subject to the
Agreement. All provisions contained in or incorporated by reference
in the Agreement upon its execution will govern this Master
Confirmation and each Supplemental Confirmation except as expressly
modified below. Until GS&Co. and Counterparty execute and
deliver the Agreement, this Master Confirmation and each
Supplemental Confirmation, together with all other documents
referring to the Agreement confirming Transactions entered into
between GS&Co. and Counterparty (notwithstanding anything to
the contrary in a Confirmation), shall supplement, form a part of,
and be subject to the ISDA Form as if GS&Co. and Counterparty
had executed the Agreement (but without any Schedule except for
(i) the election of Loss (provided that the computation of
Loss will not take into account any discrepancy between any
Relevant Price and GS&Co.’s Hedge Positions) and Second
Method, New York law (without regard to the conflicts of law
principles) as the governing law and US Dollars (“USD”)
as the Termination Currency, (ii) the election that
subparagraph (ii) of Section 2(c) will not apply to
Transactions, (iii) the replacement of the word
“third” in the last line of Section 5(a)(i) with
the word “first” and (iv) the election that the
“Cross Default” provisions of Section 5(a)(vi)
shall apply to Counterparty and GS&Co., provided that the
phrase “or becoming capable at such time of being
declared” shall be deleted from clause (1) of such
Section 5(a)(vi), with a “Threshold Amount” of USD
50 million).
1
All
provisions contained in the Agreement shall govern this Master
Confirmation and the related Supplemental Confirmation relating to
a Transaction except as expressly modified below or in the related
Supplemental Confirmation. With respect to any relevant
Transaction, the Agreement, this Master Confirmation and the
related Supplemental Confirmation shall represent the entire
agreement and understanding of the parties with respect to the
subject matter and terms of such Transaction and shall supersede
all prior or contemporaneous written or oral communications with
respect thereto.
If,
in relation to any Transaction to which this Master Confirmation
and related Supplemental Confirmation relate, there is any
inconsistency between the Agreement, this Master Confirmation, any
Supplemental Confirmation and the Equity Definitions that are
incorporated into any Supplemental Confirmation, the following will
prevail for purposes of such Transaction in the order of precedence
indicated: (i) such Supplemental Confirmation; (ii) this
Master Confirmation; (iii) the Agreement; and (iv) the Equity
Definitions.
1. Each
Transaction constitutes a Share Forward Transaction for the
purposes of the Equity Definitions. Set forth below are the terms
and conditions which, together with the terms and conditions set
forth in each Supplemental Confirmation (in respect of each
relevant Transaction), shall govern each such
Transaction.
General Terms:
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For each
Transaction, as set forth in the Supplemental
Confirmation.
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Counterparty
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GS&Co.
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Common Stock of
Counterparty (Ticker: SSI)
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For each
Transaction, as set forth in the Supplemental
Confirmation.
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For each
Transaction, as set forth in the Supplemental
Confirmation.
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Not
Applicable
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Not
Applicable
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New York Stock
Exchange
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All
Exchanges
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The definition of “Market Disruption
Event” in Section 6.3(a) of the Equity Definitions is
hereby amended by inserting the words “at any time on any
Scheduled Trading Day during the Valuation Period or” after
the word “material,” in the third line
thereof.
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Counterparty
Additional
Payment Amount:
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For each
Transaction, as set forth in the Supplemental
Confirmation.
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Valuation:
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Each Scheduled Trading Day during the period
commencing on and including the 5 th succeeding Scheduled Trading Day following the
Trade Date, to and including the Valuation Date (but excluding any
day(s) on which the Valuation Period is
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2
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suspended in
accordance with Section 5 herein and including any day(s) by
which the Valuation Period is extended pursuant to the provision
below).
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Notwithstanding anything to the contrary in the
Equity Definitions, to the extent that any Scheduled Trading Day in
the Valuation Period is a Disrupted Day, the Valuation Date shall
be postponed and the Calculation Agent in its discretion shall
extend the Valuation Period and make adjustments to the weighting
of each Relevant Price for purposes of determining the Settlement
Price, with such adjustments based on, among other factors, the
duration of any Market Disruption Event and the volume, historical
trading patterns and price of the Shares. To the extent that there
are 9 consecutive Disrupted Days during the Valuation Period, then
notwithstanding the occurrence of a Disrupted Day, the Calculation
Agent shall have the option in its discretion to either determine
the Relevant Price using its good faith and commercially reasonable
estimate of the value for the Share on such 9
th consecutive day after consultation with
Counterparty or elect to further extend the Valuation Period as it
deems necessary.
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For each Transaction, as set forth in the
Supplemental Confirmation (as the same may be postponed in
accordance with the provisions of “Valuation Period”
and Section 5 herein).
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Settlement Terms:
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USD (all amounts shall be converted to the
Settlement Currency in good faith and in a commercially reasonable
manner by the Calculation Agent).
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Settlement
Method
Election:
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Applicable; provided that
(a) Section 7.1 of the Equity Definitions is hereby
amended by deleting the word “Physical” in the sixth
line thereof and replacing it with the words “Net
Share” and deleting the word “Physical” in the
last line thereof and replacing it with word “Cash” and
(b) in the event that GS&Co. would deliver to the
Counterparty an amount of Shares under Net Share Settlement, Cash
Settlement shall be applicable in lieu of Net Share
Settlement.
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Counterparty
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Settlement
Method
Election Date:
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15 Scheduled
Trading Days prior to the originally scheduled Valuation
Date.
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Default
Settlement
Method:
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Cash
Settlement
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Forward Cash
Settlement
Amount:
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An amount in the Settlement Currency equal to
the sum of (a) the Number of Shares multiplied by an amount equal
to (i) the Settlement Price minus (ii) the Forward Price
plus (b) the Counterparty Additional Payment
Amount.
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The arithmetic mean of the Relevant Prices of
the Shares for each Exchange Business Day in the Valuation
Period.
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3
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The New York 10b-18 Volume Weighted Average
Price per share of the Shares for the regular trading session
(including any extensions thereof) of the Exchange on the related
Exchange Business Day (without regard to pre-open or after hours
trading outside of such regular trading session) as published by
Bloomberg at 4:15 p.m. New York time on such date.
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Cash Settlement
Payment
Date:
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3 Currency
Business Days after the Valuation Date.
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Counterparty’s Contact Details for Purpose
of Giving Notice:
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SpectraSite,
Inc.
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100 Regency
Forest Drive, Suite 400
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Cary, North
Carolina 27511
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Attention: General
Counsel
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Facsimile: (919)
468-8522
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with copy
to:
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Mike
O’Donnell
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Facsimile:
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(919) 468-2325
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GS&Co.’s Contact Details for Purpose
of Giving Notice:
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Telephone
No.:
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(212) 902-8996
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Facsimile
No.:
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(212) 902-0112
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Attention:
Equity Operations: Options and Derivatives
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With a copy
to:
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Jim
Ziperski
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Equity Capital
Markets
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One New York
Plaza
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New York, NY
10004
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Telephone
No.:
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(212) 902-8557
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Facsimile
No.:
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(212) 346-2126
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Net Share Settlement:
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Net Share
Settlement
Procedures:
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Net Share
Settlement shall be made in accordance with the procedures attached
hereto as Annex B.
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Net Share
Settlement
Price:
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(a) in respect of any Share for which the
Exchange is an auction or “open outcry” exchange that
has a price as of the Valuation Time at which any trade can be
submitted for execution, the Net Share Settlement Price shall be
the price per Share as of the Valuation Time on the Net Share
Valuation Date as reported in the official real-time price
dissemination mechanism for such Exchange, (b) in respect of
any Share for which the Exchange is a dealer exchange or dealer
quotation system, the Net Share Settlement Price shall be the
mid-point of the highest bid and lowest ask prices quoted as of the
Valuation Time on the Net Share Valuation Date (or the last such
prices quoted immediately before the Valuation Time) without regard
to quotations that “lock” or “cross” the
dealer exchange or dealer quotation system. In all cases the Net
Share Settlement Price shall be reduced by the per Share amount of
the underwriting discount and/or commissions agreed to pursuant to
the equity underwriting agreement
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contemplated by the Net Share Settlement
Procedures and (c) notwithstanding anything to the contrary in
(b) above, where NASDAQ is the Exchange, the Net Share
Settlement Price will be the NASDAQ Official Closing Price
(NOCP) as of the Valuation Time on the Net Share Valuation
Date as reported in the official price determination mechanism for
the Exchange.
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As provided in Section 6.1 of the Equity
Definitions; provided that Section 6.1 of the Equity Definitions is
hereby amended by inserting the words “Net Share Valuation
Date,” before the words “Valuation Date” in the
first and third lines thereof.
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Net Share
Valuation
Date:
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The Exchange
Business Day immediately following the Valuation Date.
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Net Share
Settlement
Date:
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The third
Exchange Business Day immediately following the Valuation
Date.
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Initially,
2,500,000 Shares. The Reserved Shares may be increased or decreased
in a Supplemental Confirmation.
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Share Adjustments:
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Calculation
Agent Adjustment
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Extraordinary Events:
Consequences of Merger
Events:
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Modified
Calculation Agent Adjustment
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Cancellation and Payment on that portion of the
Other Consideration that consists of cash; Modified Calculation
Agent Adjustment on the remainder of the Other
Consideration.
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Component
Adjustment
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GS&Co., who
shall act in good faith and in a commercially reasonable
manner.
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Consequences of Tender
Offers:
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Modified
Calculation Agent Adjustment
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Cancellation and Payment on that portion of the
Other Consideration that consists of cash; Modified Calculation
Agent Adjustment on the remainder of the Other
Consideration.
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Component
Adjustment
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GS&Co., who
shall act in good faith and in a commercially reasonable
manner.
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5
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Nationalization, Insolvency
or Delisting:
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Negotiated Close-out; provided that in addition
to the provisions of Section 12.6(a)(iii) of the Equity
Definitions, it shall also constitute a Delisting if the Exchange
is located in the United States and the Shares are not immediately
re-listed, re-traded or re-quoted on any of the New York Stock
Exchange, the American Stock Exchange or The NASDAQ National Market
(or their respective successors); if the Shares are immediately
re-listed, re-traded or re-quoted on any such exchange or quotation
system, such exchange or quotation system shall be deemed to be the
Exchange. Additional Disruption Events:
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Applicable
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Not
Applicable
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Applicable
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(d) Loss of Stock
Borrow:
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Applicable; furthermore
Sections 12.9(a)(vii) and 12.9(b)(iv) of the Equity
Definitions are amended by deleting the words “at a rate
equal to or less than the Maximum Stock Loan Rate” and
replacing them with “at a rate of return equal to or greater
than zero taking into account the investment return on posted
collateral assuming 100% cash collateral”.
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GS&Co.
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GS&Co., who
shall act in good faith and in a commercially reasonable
manner.
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Applicable
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Agreements and
Acknowledgements Regarding Hedging Activities:
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Applicable
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Additional
Acknowledgements:
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Applicable
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Net Share
Settlement following
Extraordinary
Event:
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Counterparty shall have the right, in its sole
discretion, to make any payment required to be made by it pursuant
to Sections 12.7 or 12.9 of the Equity Definitions (except
with respect to any portion of the consideration for the Shares
consisting of cash in the event of a Merger Event or Tender Offer)
following the occurrence of an Extraordinary Event by electing to
Net Share Settle the Transactions under this Master Confirmation in
accordance with the terms, and subject to the conditions, for Net
Share Settlement herein by giving written notice to GS&Co. of
such election on the day that the notice fixing the date that the
Transactions are terminated or cancelled, as the case may be, (the
“Cancellation Date”) pursuant to the applicable
provisions of Section 12 of the Equity Definitions is
effective. If Counterparty elects Net Share Settlement: (a) the Net
Share Valuation Date shall be the date specified in the notice
fixing the date that the Transactions are terminated or cancelled,
as the case may be;
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provided that the Net Share Valuation Date shall
be either the Exchange Business Day that such notice is effective
if such notice is received by 12:00 pm New York time or, if such
notice is received after 12:00 pm New York time, the first Exchange
Business Day immediately following the Exchange Business Day that
such notice is effective, or as otherwise agreed to by GS&Co.
and Counterparty, (b) the Net Share Settlement Date shall be
deemed to be the Exchange Business Day immediately following the
Cancellation Date and (c) all references to the Forward Cash
Settlement Amount in Annex B hereto shall be deemed to be
references to the Cancellation Amount.
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Net Share
Settlement Upon
Early Termination:
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Counterparty shall have the right, in its sole
discretion, to make any payment required to be made by it (the
“Early Termination Amount”) pursuant to
Sections 6(d) and 6(e) of the Agreement following the
occurrence of an Early Termination Date in respect of the Agreement
by electing to Net Share Settle all the Transactions under this
Master Confirmation in accordance with the terms, and subject to
the conditions, for Net Share Settlement herein by giving written
notice to GS&Co. of such election on the day that the notice
fixing an Early Termination Date is effective. If Counterparty
elects Net Share Settlement: (a) the Net Share Valuation Date
shall be the date specified in the notice fixing an Early
Termination Date; provided that the Net Share Valuation Date shall
be either the Exchange Business Day that such notice is effective
or the first Exchange Business Day immediately following the
Exchange Business Day that such notice is effective, (b) the
Net Share Settlement Date shall be deemed to be the Exchange
Business Day immediately following the Early Termination Date and
(c) all references to Forward Cash Settlement Amount in Annex
B hereto shall be deemed references to the Early Termination
Amount.
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Notwithstanding anything to the contrary in the
Agreement, GS&Co. may assign, transfer and set over all rights,
title and interest, powers, privileges and remedies of GS&Co.
under any Transaction, in whole or in part, to an affiliate of
GS&Co. (the “Assignee”) upon delivery to
Counterparty of (a) notice of the transferred obligations of
GS&Co. under any Transaction (the “Transferred
Obligations”); (b) an executed guarantee (the
“Guarantee”) of The Goldman Sachs Group, Inc. (the
“Guarantor”) of the Transferred Obligations in the form
of Annex C attached hereto and (c) the written confirmation of
Counterparty that any assignment or transfer will not result in any
increased costs to Counterparty. Upon the execution of the
Guarantee, the Guarantor shall constitute a Credit Support Provider
of the Assi
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